Terrorists, Cellphones, and the Right to Privacy – Should a Private Company be Required to Hacks Into Its Own Phones in the Interest of National Security?

In a case that is attracting nationwide media attention, the Federal Bureau of Investigation has demanded that Apple, Inc., provide technical assistance in the form of “unlocking” a cellular telephone (an iPhone, to be exact) in order to assist the FBI’s investigation into an alleged terrorist attack in San Bernardino, California, on December 2, 2015. Fourteen people died in the attack, which is believed to have been carried out by a married couple who may have been radicalized or have had ties to an international terrorist organization.

Although the couple was killed, federal officials were able to seize a phone that is believed to have belonged to them. Unfortunately, the FBI’s attempts to access the phone caused the phone to become “locked” instead. The federal agency then sought assistance from Apple, whom officials believed could help them hack into the phone and possibly retrieve information that would be useful in the ongoing investigation into the attack, including information about possible accomplices.

The Issue

In a battle that pits national security interests against consumer privacy rights, the courts must decide whether Apple is obligated to assist the FBI. Representatives for Apple have vigorously argued that creating a “backdoor to the iPhone” would put customers at risk and could create a dangerous precedent. Apple acknowledges that the government’s intentions in this particular case may be good but cautions that forcing the company to assist the government in its investigation in the manner requested could undermine individual freedoms and liberties in the long term.

According to a “customer letter” issued by Apple, if the government is successful in its endeavors in the San Bernardino case, the next step could be an order directing Apple to intercept messages, track a phone owner’s location, or access a phone’s camera without the owner’s knowledge. The company takes particular issue with the fact that the government is relying on a 200-plus-year-old law (the All Writs Act of 1789) to justify its demands that Apple provide assistance in what is clearly a 21st-century situation that could never have been imagined at the time that the law in question was passed.

What Happens Next?

It is likely that the trial judge’s decision will be appealed and that an appellate court – possibly the United States Supreme Court, eventually – will be asked to weigh in on the issue. This could involve amicus curiae support from other technology companies, such as other smart phone developers and social media companies. Congress may also consider legislation to clarify the law in future cases, although that too could be subject to much debate and a possible constitutional challenge.

If You Need to Talk to a Lawyer About a Criminal Matter

The courts’ interpretation of the rules of evidence as they apply in criminal matters can evolve rapidly, especially in cases involving technology. If you have been accused of a crime, you need an attorney who stays abreast of the latest developments in the law. To speak with an experienced and knowledgeable Massachusetts criminal defense attorney, call the Law Offices of John C. Manoog, III, at (888) 262-6664 and ask for an appointment. Our offices are located in Hyannis and Plymouth. We serve clients throughout Cape Cod, as well as elsewhere in Massachusetts.